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28 September 2021PatentsMuireann Bolger

Germany ratifies UPC protocol, predicts mid-2022 start

Germany has ratified the protocol on the provisional application (PPA) of the Unified Patent Court (UPC) Agreement meaning that the long-anticipated court could come into force in mid-2022, the country’s federal government has announced.

In a statement released yesterday, Monday 27 September, Germany confirmed that it had deposited the instrument of ratification, an important step on the way to the establishment of the UPC.

The development comes after Germany published its legislation for ratification of the UPC Agreement in August. But at the time, Germany was unable to “deposit” the instrument of ratification with the General Secretariat of the Council of the EU until it became clear when the court would be ready to open. The government now expects that the court will materialise in the middle of next year.

The UPC is coming

Commenting on the development, Federal Minister of Justice Christine Lambrecht said: “With this step we have come a decisive step closer to the European patent reform, which is so important for innovative companies in Europe. The UPC will come.”

She pointed out that for German industry, which holds around 40% of all European patents registered from Europe, better protection of their inventions in the European internal market is of particular importance. “This is especially true for small and medium-sized companies that make a significant contribution to the innovation potential of our country,” she added.

The UPC project has faced stumbling blocks in recent years, particularly after the UK confirmed it would no longer participate in the wake of Brexit.

In November 2020, the German parliament approved a ratification bill on the UPC Agreement, after the German government submitted new draft legislation to ratify it.

Failure of constitutional complaints

But in January 2021, it looked as if the project could stall again when two complaints were filed against it.

However, in July, Germany’s Federal Constitutional Court held that the complaints were inadmissible as the filings had failed to sufficiently assert and substantiate a possible violation of fundamental rights.

The UPC will form the new legal framework for uniform European patent protection and will be able to decide on legal violations and the effectiveness of protective titles in one proceeding.

According to the German government’s statement, this development will enhance the protection of inventions, especially for small and medium-sized enterprises (so-called SMEs) that are active in fields of innovation.

So far, 15 signatory states have ratified the convention themselves, including Austria, Belgium, Denmark, France, Luxembourg, Malta, Portugal, Sweden, Finland, Bulgaria, Estonia, Italy, Latvia, Lithuania and the Netherlands.

There is one step left, however. Germany will need to ratify the convention, when it is clear when the UPC will be fully operational. This means that jurisdiction over European patents will be transferred to the UPC only when the convention comes into force.

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